Sex work appeal resumes in Ontario

Judge relied on 'ideological' opinion, not fact: Crown

The lawyer representing Ontario in the appeal of the historic ruling that decriminalized prostitution in the province threw out a series of logical loops on June 14, in an attempt to have the Court of Appeal uphold Canada’s anti-sex-work laws. It was the second day of hearings on the appeal.

Crown lawyer Jamie Klukach argued first that there is no harm caused to sex workers by the law; then that if the law does lead to harm, it is not the fault of the law itself; then that if the law is contributing to harm, that getting rid of it won’t eliminate the violence faced by sex workers.

Prostitution itself is not illegal in Canada, but a number of activities related to prostitution are, including communicating for the purposes of prostitution, running a brothel or bawdyhouse, and living off the avails of prostitution. Sex workers successfully argued before the Ontario Superior Court that these laws contribute to violence against sex workers by making it illegal to screen clients, work in groups or hire bodyguards.

At one point, Klukach compared these laws to laws that ban the sale of home-brewed liquor, saying that the law similarly impairs a home brewer’s safety.

The five-judge panel didn’t buy that argument.

“Your example is of someone who’s not complying with the law. Their position is that they are complying with the law,” Justice Feldman responded.

Justice MacPherson pointedly compared the case to a hypothetical law that would bar a crown prosecutor who’s trying a dangerous case from hiring a bodyguard.

Nevertheless, Klukach argued that the fact that sex workers choose their profession knowing the dangers associated with it “weakens the causal connection” between the law and the violence faced by sex workers.

“What’s being interfered with is not a security interest” but instead an economic choice, she argued.

In this case, “harm happens by individual acts of others without state encouragement. The state has not acted in a joint endeavour to cause harm,” Klukach said.

Therefore, she argued, the law cannot be responsible for the harm suffered by sex workers, using standards of criminal law.

That doesn’t explain why a law that contributes to a dangerous situation should be allowed to stand.

Klukach eventually argued that “the jury’s still out” on whether decriminalization will have the purported effect of eliminating or reducing the harms associated with sex work.

“There’s polarization here between people who see prostitution as populated by independent, self-determined individuals and those who say it can’t be made safer because it is inherently dehumanizing,” she argued. “The judge should not have taken sides.”

Klukach also took issue with the judge’s reliance on the work of the parliamentary subcommittee on solicitation laws, which recommended decriminalization.

“The reference [Justice Himel] relies upon are essentially opinions that rely upon an ideological perspective. These aren’t facts. They’re not evidence. They’re a point of view that’s disagreed with by others, including the government.”